Opinion
2017–01447 Ind. No. 301/16
03-13-2019
The PEOPLE, etc., Respondent, v. Diony RODRIGUEZ–ABREU, Appellant.
Marianne Karas, Thornwood, NY, for appellant. Madeline Singas, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Hilda Mortensen of counsel), for respondent.
Marianne Karas, Thornwood, NY, for appellant.
Madeline Singas, District Attorney, Mineola, N.Y. (Laurie K. Gibbons and Hilda Mortensen of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDERORDERED that the judgment is affirmed.
Although the defendant validly waived his right to appeal (see People v. Sanders , 25 N.Y.3d 337, 341–342, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez , 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ), his contention that his plea was not knowing, voluntary, and intelligent survives his valid appeal waiver (see People v. Seaberg , 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 ; People v. Fontanet , 126 A.D.3d 723, 2 N.Y.S.3d 371 ). However, the defendant's contention that his plea of guilty was not entered voluntarily because the Supreme Court failed to adequately advise him of the immigration consequences of his plea is unpreserved for appellate review, as he failed to raise the issue or move to withdraw his plea despite indicating on the record that he was aware that there could be immigration consequences to pleading guilty (see People v. Peque , 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Ramsood , 161 A.D.3d 1198, 1199, 74 N.Y.S.3d 507 ; People v. Sanchez , 152 A.D.3d 548, 58 N.Y.S.3d 132 ). In any event, the defendant's contention is without merit, as the court adequately advised him that his plea of guilty could expose him to deportation (see People v. Ramsood , 161 A.D.3d at 1199, 74 N.Y.S.3d 507 ; People v. Sanchez , 152 A.D.3d at 548, 58 N.Y.S.3d 132 ; People v. Jimenez , 150 A.D.3d 408, 409, 52 N.Y.S.3d 717 ).
The defendant further argues that his plea of guilty was not entered voluntarily because the Supreme Court did not accurately advise him of his potential sentencing exposure, and failed to inform him that as a consequence of his plea of guilty he may receive an enhanced sentence for any crime that he may commit in the future. However, the defendant's contentions are unpreserved for appellate review (see People v. David , 163 A.D.3d 846, 77 N.Y.S.3d 306 ) and, in any event, without merit (see People v. Taylor , 60 A.D.3d 708, 709, 874 N.Y.S.2d 531 ; People v. Depeyster , 115 A.D.2d 613, 496 N.Y.S.2d 275 ; cf. People v. Garcia , 92 N.Y.2d 869, 870, 677 N.Y.S.2d 772, 700 N.E.2d 311 ).
The defendant's contention, in effect, that ineffective assistance of counsel affected the voluntariness of his plea is based, in part, on matter on the record and, in part, on matter outside the record, and thus, constitutes a mixed claim of ineffective assistance (see People v. Evans , 16 N.Y.3d 571, 575, 925 N.Y.S.2d 366, 949 N.E.2d 457 ; People v. Maxwell , 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ). Therefore, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Freeman , 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell , 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
AUSTIN, J.P., ROMAN, MILLER and BRATHWAITE NELSON, JJ., concur.